THE CULTURE WAR OVER RIGHTS FOR GAYS AND LESBIANS: WHY "SPECIAL RIGHTS" TALK IS MISLEADING

By SHERRY F. COLB

Wednesday, Nov. 08, 2000

The rights of gay and lesbian Americans have lately been the subject of heated debate in national politics, and in the courts. In the words of Supreme Court Justice Antonin Scalia, this debate is part of a more general "kulturkampf" (German for "culture war or struggle") in our society. This ongoing struggle has led to varying positions among the Justices and in political contests.

The Culture War, On the Bench and in the Campaigns

Just last term, the Supreme Court held that New Jersey could not prohibit the Boy Scouts from firing a troop leader because he was openly gay. The Boy Scouts, on this reading of the Constitution, have the right to discriminate on the basis of sexual orientation. States, however, do not have this right, at least not in all circumstances — according to a decision the Court reached a few years earlier.

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In that decision, the Court struck down, as a violation of the Constitution's guarantee of "equal protection," Colorado's infamous "Amendment 2" — a state constitutional provision that prohibited cities in Colorado from passing anti-discrimination laws protecting gay men and lesbians. In his dissent, Justice Scalia defended the validity of Amendment 2 and argued that the gay community, "a group which enjoys enormous influence in American media and politics," should not be able to use their "disproportionate political power" to enact laws granting them "preferential treatment" relative to the rest of the population. He stated that "[t]he amendment prohibits special treatment of homosexuals, and nothing more."

During the second presidential debate of 2000, Al Gore promised that as President, he would support a federal law banning discrimination on the basis of sexual orientation. George W. Bush indicated that he himself would not discriminate against gays or lesbians but that he did not believe in anyone's having "special rights."

The Meaning of the Claim that Some Groups Have "Special Rights"

What do opponents of anti-discrimination laws mean when they speak of "special rights" or "special treatment"? It sounds as though they are saying, paradoxically, that laws protecting gays and lesbians from discrimination would themselves constitute discrimination.

To assess the plausibility of this claim, consider existing statutes banning employment discrimination. Federal law prohibits employers from making decisions about hiring, firing, or working conditions generally, on the basis of race, sex, ethnicity, national origin, religion, or pregnancy. (Note that sexual orientation is not currently on the list.)

This list of categories is a limited one. We can certainly imagine qualities that are not enumerated but against which an employer might wish to discriminate. Some employers, for example, might favor quiet and subdued employees, while others might prefer extroverts. One employer might wish to promote people who went to his high school, while another might demote anyone from Massachusetts. Nothing would legally prevent these employers from discriminating on the basis of introversion, extroversion, high school, or (if a private employer) state of origin.

Thus, if I am from Massachusetts and I am fired or demoted for that reason, I may well feel unfairly disadvantaged relative to those whose targeted qualities are covered by federal anti-discrimination law. Like them, I may have suffered what I feel is discrimination. Unlike them, however, I will have no recourse in the law. Whereas one of them could sue an employer for discriminating against her for being from Japan, I could not sue anyone for discriminating against me for being from Massachusetts. Therefore, I might complain that others have "special rights" as compared to me.

Which Groups Should Be Protected Under Anti-Discrimination Law?

The difference between being covered and not being covered by the discrimination laws is hardly a trivial one. Indeed, if it were not very important, then the passage of a law prohibiting sexual orientation discrimination would not greatly concern anyone on either side of the question. But is there some principled way to decide which qualities should be able to form the basis for permissible discrimination and which should not? Is it all simply a matter of political clout?

The answer to the second question is no. Political clout can be useful in gaining legal protection for one's own group, but that fact does not vitiate the force of the moral and philosophical questions at stake. The reality is that although people routinely make arbitrary and perhaps unfair decisions about which qualities to favor or disfavor in the employment context, many of these decisions are unpredictable in the direction they will take.

For example, the employer who dislikes everyone from Massachusetts is not (so far as I know) typical, and the citizens of Massachusetts therefore continue to have many job options throughout the United States, notwithstanding the particular prejudice held by a given employer. Similarly, although one employer might like quiet, calm people, the extrovert will likely have many alternatives from which to choose a job.

The categories that make up "prohibited classifications" under federal law are different. An employer who discriminates against African-Americans or women is not an anomaly, an unpleasantry from which the African-American or woman can escape simply by applying for a similar job at the company next door. Instead, there is a long and ugly history of employers (and others) excluding and harming people on the basis of race and sex. Moreover, recognition of this history led to the passage of Title VII of the Civil Rights Act. A similar recognition has led in the relatively recent past to laws prohibiting discrimination on the basis of age, and on the basis of physical or mental disability.

Protection from Enduring Forms of Discrimination Is Not "Special"

Unlike Massachusetts citizens, and like African-Americans and women, gays and lesbians have suffered a history of discrimination and hatred in this country. It is easy to see, moreover, that sex discrimination and sexual orientation discrimination are closely related phenomena. Both are based on the notion that women are supposed to act "like women" and men are supposed to act "like men" — whether that means pursuing stereotypically feminine or masculine pursuits (being a nurse, model or school teacher versus a doctor, executive or senator), or choosing love interests "proper" to one's sex.

As gays and lesbians have argued persuasively, the law should extend protection beyond the categories it presently lists. An anti-discrimination law that protected gays and lesbians would take account of such prejudices, and of their persistence in the population, and would attempt to give its victims protection in at least one sphere — that of employment — in which sexual orientation normally does not affect one's merit or qualification.

An extension of anti-discrimination protection would demonstrate a level of respect for gays and lesbians that has previously been denied them. In some sense, this is "special." But in reality, there is nothing "special" — in the sense of "discriminatory" — about it. Like the proverbial law that prohibits rich and poor alike from sleeping under bridges, the law's current failure to protect gays and lesbians from discrimination does not treat everyone the same.

Professor Sherry F. Colb, a FindLaw columnist, is on the faculty of Rutgers Law School in Newark.

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